Lawyer Free Net

Would it be possible to create a licensing scheme for a network which
specifically forbids any legal action?

I remember the good old days, 15 years ago, when the Internet was an
academic plaything, and legal action was an aberrant exception to the
rules. It was possible to hack into any machine, break any software, try
out new methods, experiment with ideas, and express any opinions without
worrying about going to jail.

It was a harsh environment in some ways, but it was a pure one.
Companies didn't sue everyone to legally justify faulty protocols or bad
designs. Ideas, messages and machines stood or fell on their technical
merits.

Is it possible to introduce a licensing scheme for machines and networks
that removes any legal recourse? Some way of forming a network that says
that anything on that network cannot be used as the basis of any legal
case.

Obviously there are limits to what can be screened out... eg, illegal
material is going to be illegal whatever the disclaimers. However, a
common agreement between users of this network could eliminate a lot of
crap.

The cypherpunks envisioned such a free network in which the
participants are protected not by legal disclaimers but by
pseudonymity. Read the Cyphernomicon
(by Tim May, not to be confused with _Cryptonomicon_ by Neal
Stephenson).

It hasn't really worked out, but it might, yet. Look at Zero Knowledge.

Also my own project, Mojo Nation
might enable people to publish information (source code, rants,
etc.) without fear of censorship.

As you say, illegal activities remain illegal; it's not possible to
create a "law free zone" (for obvious reasons!). It sounds like what
you want is a *tort* free zone. Specifically, you want everyone who
signs up to your network to sign a disclaimer absolving the network and
everyone else on it of any responsibility for harm which may ensue from
data which arrives on the network.

(On the other hand, what if their upstream provider has faulty equipment
which shorts 110V directly onto the network wire, frying their
equipment? I suspect you'd still want to hold them liable.)

Is it possible to write a legally binding disclaimer of that form? I'm
not a lawyer, but I hope so; it's generally useful to be able to
negotiate liability. But, once again, the illegal will remain illegal,
so the DMCA still applies and you can still be taken to court for
distributing DeCSS.

I was an active net participant 15 years ago, and my use of the
Arpanet predates the switchover to TCP/IP. I ran my company's
Usenet feed from 1985 to 1989.

The fantasy network "whatever" is referring to did not exist 15
years ago. People could get away with more because fewer people
were paying attention, but when attention was brought to bear,
people most certainly were punished, in a number of cases by
completely losing their access to the network. It was not legal
to do for-profit business over the Internet. Usenet, which did
not go over the Internet in those days (NNTP was just beginning,
most of the traffic went over UUCP dialups) was more
anarchic in some ways, though not in others; Europe cut off access
to the Usenet net.politics group because of a few neo-Nazis (the
real kind) posting race-hate stuff that is illegal to distribute
in most of Europe, and if you offended one of Usenet's petty dictators,
you were hosed.

If crackers were ignored to a greater degree, it was because what
they were cracking into was considered to have no value (unless it
was the telephone network: phone phreaks were being jailed in 1986).

Me, I'm a big fan of anarchism (not what commonly passes
these days for libertarianism, which seems overly fixated on
property rights at the expense of all other rights). Anarchism
means that people attempt to get along and cooperate without some
of the people imposing their will unilaterally on the others.
When it works, anarchism works
by achieving rough consensus. When the net was a small community
of like-minded people, this kind of anarchism was achievable,
although there were many crises along the way (hence the common
phrase "Death of USENET predicted").

Why would we want an Internet devoid of rules, even if one were
possible? While yes, there is always a longing for the days of yore,
back when things were "pure," those days are past. Why should it be ok
if you hack into a computer? Today the Internet is a lot more than a
plaything. There are serious problems if any script kiddie can break
into a site, steal my credit card number, and spend my money. There are
serious problems if pedophiles can freely exchange kiddie porn. These
things are illegal for a reason. Of course, these are extreme examples.
But honestly, if such a network were created, who do you think would be
using it?

The "hacker ethic" and all of that is great, barely anyone that is a
hacker (in the breaks into computers sense of the word) actually knows
what those are anymore. Hacking isn't really about intellectual
curiosity anymore. Of course, people will hide behind that statement to
make themselves seem less culpable. Very few people actually have
strong ethical ideals that they are willing to adhere to. This is why
there are those pesky things like laws. "If men were angels, we
wouldn't need government."

I have a really hard time buying into the techno-libertarian ideals
that are so often tossed around. Yes, some laws are frustrating, and
are dumb. But should we just ignore them? Absolutely not. We should
use ourselves as an interest group, and lobby countries to make changes.
Really, government isn't what people should be worried about. I'm a
little more worried about huge multinational companies that wield far
more power than most governments. Without the few restrictions that are
imposed on them now, things would quickly get far worse for individuals
that want increased freedoms.

Rather than making technology that can subvert laws, we should
recognize that people with less nice intentions can do the same thing.
While things like FreeNet or a "Lawyer-free" network are nice ideas,
they are not going to turn out like they do in cyberpunk novels. If you
feel your freedoms are being restricted, fix it at the societal level.
You make things better for everyone that way. One of my hopes for the
Free Software movement is that it will reach a critical mass, at which
point it will gain some political influence. Then we can see some
positive changes to the laws regarding IP. We can try and return to
more grassroots democracy. We can try and remove power from the huge
companies that have appropriated the government. But we can't do that
by ignoring laws and working around things with technological means.
The focus should be on promoting the fundamental values of the
community, not just removing ourselves from governmental influence.

I'm going to focus on the question of whether this would work rather
than whether it's a good idea. It wouldn't work.

You can't avoid criminal liability in any jurisdiction with a disclaimer
or a contract (unless a particular criminal law happens to say that
consent is a defense, but it still might not be possible to express
consent through a contract or agreement far in advance -- I assume you
can't have a prior contract to have sex and use that as a defense
against rape charges). The traditional theory is
that criminal offenses are offenses against the state, not just against
some individual or group; in some countries
where a monarch is considered the head of state,
these cases were (and are) prosecuted under titles like R. v.
Smith, where R.
stands for "Rex" or "Regina" (the King or the Queen).

There's no reason that the Queen, or the United States Attorney, or
any other prosecutor would refrain from prosecuting criminal offenses
because of a disclaimer.

How about civil lawsuits? Here in theory
people can sign contracts promising not to sue for certain
categories of things. But if those are applied too broadly, the
contracts are usually considered "void as against public policy" by
legal systems (meaning that they are invalid, or can't be enforced in
court, because there is a claimed public interest in not enforcing
that provision). You can sign a blanket contract saying that you won't
sue a certain person, period, but it's really unlikely that a court
would hold you to that in every imaginable circumstance (even
circumstances in which you had intended that it apply).

Depending
on your goals, you might or might not care whether courts will enforce
the contract creating a "lawyer-free zone". After all, there are many
other dispute-resolution and contract-enforcement mechanisms outside of
courts! (Some people seem to refuse to believe that this is the case or
that anyone would care.) Some of those methods are legal and some are
illegal or extralegal.

One of the most popular methods which is often
legal is to sign a contract saying that all disputes in certain broad
categories will be submitted to binding arbitration rather than
litigation. Often courts have been willing to accept this and to
require people to go to private arbitrators -- except for the
exceptions, where courts thought it was important for some public policy
reason that they overrule that and retain jurisdiction.

So if you just
want a practical legal strategy, you could ask a lawyer about an
attempt to bind a huge collection of people (who want to participate
in a network) to arbitration subject to certain stipulated principles.
But that doesn't mean that a court would refuse to intervene if it saw
some law or issue that it thought needed to be addressed and couldn't
adequately be satisfied through arbitration. And this is a big threat
to people who are (by mutual consent) trying to avoid having their
potential disputes end up in court.

Anyway, there is (by design) no
legal way out of standard criminal liability within the context of a
legal system that recognizes it. There are huge categories of things
where consent is considered no defense -- and some of the hot issues
like copyrights can't legally be circumvented by making people sign
waivers and NDAs and things.

"Public policy" as a concept is extremely
powerful; it means that many intuitions about how (e.g.) contracts
should work ("But he signed it!") are completely thrown out the
window much of the time in the service of some other interest. A lot of
libertarians and some other people are very interested in "private law"
-- roughly, we n people say that our interactions with one another
(though not necessarily with others) will be governed by these
stated principles and procedures, rather than "standard" or "default"
civil procedure as created through legislation and common law. The
trick here is that courts consider that public policy requires that
everyone have recourse to the courts to have grievances dealt with, and
that you can't entirely sign that right away (even if you wanted to).

I seem to recall that the first attempt that IBM made at a open software licence had a provison
that among other things revoked your right to use the software if you were to take IBM to court. Someone, I belive it was
BrucePerens had to explain to them why this was not such a good idea.

If you want to set up a network where you can try exploits and such, you can do so if you control the entire network. You could set up a
testbed arrangement, perhaps located at a university, or a laboratory to experiment with such things. You probaly could limit the
conectivity to those that agree to allow the experiments. Oviously, such anetwork has no place on the Internet at large.

While I came into usenet at the end of the golden age, I agree that any lack of formal use of the legal system had to do with the fact
that all users were participating with the permission/blessing of their Employer or School. Any transgresion was delt with by the
NET-Death penalty - you simply would lose access.
In those days I had no way to use the net because I was not a student or a researcher. When I got wind thorugh my wife's workplace that
the NCF was opening I jumped for joy. A year or so later, One could start to connect via commercial
suppliers like Achilles, then the hordes came from AOL and usenet
has not been the same since. Before the Invasion by AOL, usenet would become unusable for two weeks in september while all the new
undergrads learned about netiquette, often by way of Flame-Mail in their shiny new mailbox.

Any content that was illegal that was not dealt with in those days was surely a case of the authorities either not watching, or being
unsure how to proceed against someone who may well be in a country where the material in question may be legal. These days, that
partular problem is sometimes bypassed by attempting to apply US law everywhere. - An Idea that has its start because almost every
part
of the net tends to pass though the US.....(and the Americans have it in their minds that they are cops to the world)

Most of what you're talking about seems to be the effect of a fairly
small, homogeneous population of users - i.e. a community. Past (x)
users (x being some mysterious threshold where it stops being a
community), you loose that. The web today is _so_massive_ that you can
only have little communities separated - much like in meatspace.
Obviously it's a bit weirder given that location and (increasingly
language) don't matter.

Re: "no legal action": In the pure sense, no - i.e. tort is part of
most legal system around the world. It's a relatively good system in
most places, though in the USA it (in my opinion) has been abused so
badly that people aren't allowed to accept the consequences of their
actions.

You could create a _contract_ not a license, since I don't believe one
would be applicable - that explicitly states that certain pieces of
infrastructure are to be offered up to the "community" for whatever
purposes it likes, and that you disclaim any right to take action on
any party that does damage to that infrastructure, etc.

Not being a lawyer, I can't say for sure, but I think under the right
circumstances you could do that (and it would hold up in court),

But the question is, why? Small networks of people doing something
strange like trying to hack each other's machines occurs to me as
something cs undergrads and their friends do for fun, which is fine -
but no one is going to sue them as long as they don't hack anyone's
machine without permission :)

But you certinaly can't get around the fact that intentionally cracking
machines can in some cases be a federal crime (though just breaking in
seems to be a misdemeanor)

anyway, lawless land isn't a possibility, but I think you could come up
with a good set of rules for people to agree to, so no legal action was
possible, but I don't see why? :)

It whould be interesting to build new souciety, but the wrong thing here is you still need to interact to real world.
And The Real World need Low to govern and keep the state of main business class. They need stable future.
But they also need Internet (network people made them think so :)

You could create communities (like Advogato) with or without management. But it is all untill
you need to bye computer or pay for Internet access or just food.

Same with breakage into computer - it is all ok, untill it cost money to some businessman. Not
the fact of breaking in, but the result of it - influence on Real World is valuable (but harder to track :)

the only requirement is that you need to be able to prevent identity
from being revealed, from sufficient content and legitimate use that as
a whole it is tollerated.

Privacy, security.

the posibilities abound, people just need to grasp them.
If an identity can be traced back to a real person then an external
person can sue over a comment regardless of where made, no traceability
can be allowed, keep your identity secure and you wont get sued. Keep
the info where it can't be pulled it will stay up.
Don't do transactions that can reveal yourself, all these are possible,
they just take the effort of doing them, this will get easier with
time.

cya, Andrew...

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